Hardline anti-immigration policies are the bread and butter of worrying nationalism trends in both Europe and the United States. Both United States President Donald Trump and Italy’s interior minister, Matteo Salvini, run their election campaigns on anti-immigration rhetoric. Both were ready to follow up with legally questionable, direct attacks on immigrants: Trump’s wall on the border with Mexico and Salvini’s closing of Italian waters to NGO rescue ships are cases in point. More recently, Trump has innovated in his effort to clamp down on immigration by waging an indirect, but equally illegal battle through the use of citizenship data. Will the judiciary withstand that fire?

The United States Supreme Court announced its judgment in Department of Commerce v. New York on June 27, 2019. The Justices provided 92 pages of judicial reasoning, agreeing and disagreeing over various parts of the Chief Justice’s Opinion for the Court, but the bottom line is clear: the Supreme Court left in place the injunction of a lower court that blocked inserting a citizenship question to the 2020 Census. Approximately two weeks after the Supreme Court decision in the census case, President Trump issued an Executive Order establishing “an interagency working group with a goal of making available…administrative records showing citizenship data for 100 percent of the population.” The Executive Order contemplates both the collection of personal data concerning citizenship status for statistical purposes and the use of citizenship data for determinations about public benefits; its passage coincided with deportation raids by the Trump administration. Having in mind the Supreme Court rationale for blocking the census 2020 citizenship question, it appears plausible that the census case may return to the Supreme Court, which might need to determine whether the decision to collect data about citizenship is a renewed “contrivance.”

Judge Furman and Justice Robert’s Take on the US Census 2020 Citizenship Question

The United States Constitution explicitly mandates the government to conduct a census every ten years. Census data on every single person residing in the United States, regardless of legal status, is collected to apportion state representatives to the House of Representatives, to draw political districts, as well as to allocate hundreds of billions of dollars in federal, state and local funds. Since 1960, the decennial census questionnaire distributed to all households in the country has excluded a question on citizenship. The citizenship question appeared instead in the American Community Survey (ACS), conducted annually solely for demographic purposes and distributed to about two percent of households in the country. The Census Bureau has stated that to ask this question on the census would make difficult to count already “hard-to-count” groups–particularly non-citizens and Hispanics–whose members would be less willing to participate out of fear that their data could be used against them. In March 2018, Secretary of Commerce Wilbur Ross announced that he would reinsert the citizenship to the Census for 2020. He claimed that this would assist the Department of Justice (DOJ) enforce the Voting Rights Act (VRA).

That decision was challenged on two grounds: first, the plaintiffs contended that it violated the Administrative Procedure Act (APA), which prohibits federal agencies from acting in a manner that is capricious or arbitrary; second, they alleged that the decision violated the Due Process Clause of the Fifth Amendment of the United States Constitution because it was motivated in part by invidious discrimination against immigrant communities of color. Judge Furman from the lower district court of New York sided with the plaintiffs on the first challenge, finding that adding the citizenship question would result in a significant reduction in self-response rates among non-citizen and Hispanics. Importantly, this undercount would in turn translate into a loss of political power and funds for some states and localities that are home to numerous immigrant communities. The court spent considerable amount of ink examining the record and reviewing the decision-making process through which the Department of Commerce justified its decision to insert a citizenship question to the census. It found that Secretary Ross wanted to add the question to the 2020 census prior to, and independent of, DOJ’s December 12, 2017 request; that the Secretary and his aides pursued that goal vigorously for almost a year, with no apparent interest in promoting more robust enforcement of the VRA; and that, believing they needed another agency to request and justify a need for the question, Secretary Ross and his aides worked hard to generate such a request for the citizenship question from DOJ.

On appeal, Chief Justice Roberts stated that contrary to what the district court found, uncertainty about the reasons behind underreporting was not unjustified, and that the Secretary of Commerce’s policymaking discretion did not need to be subordinated to the technocratic expertise of the Census Bureau. In other words, the Chief Justice found that inserting a citizenship question in the census was a policy choice within the range of reasonable options before the Secretary of Commerce. In spite of this partial reversal of the district court’s judgment however, the Chief Justice affirmed Judge Furman’s opinion by stating that there was a “significant mismatch between the decision the Secretary made and the rationale he provided”. In conclusion, the Chief Justice described Secretary Ross’s rationale for adding the question as “contrived” and a “distraction” rather than an explanation. The Chief Justice emphasized that the reasoning of the Secretary of Commerce could not pass muster even under a deferential standard of review, lest it emptied of all sense the basic administrative law requirement that agencies offer genuine justifications for important decisions they take, decisions that moreover should be scrutinized by courts and the interested public.

What is at Stake with Citizenship Data?

In substance, the Census 2020 litigation has been about preserving from the federal government the personal information of vulnerable immigrant populations concentrated in big urban centers that oppose the central administration’s anti-immigration stance. There is at least one legal precedent in American history showing the misuse of census data for partisan purposes back in 1920. And while for some American states and localities the accuracy of the data at issue translates into the risk of losing congressional seats and funds, for individuals the loss of privacy and the possible risks of misuse of their personal data are no less grave.

The current differences between the European and American objections to the collection of census data are notable. In the United States, there is no constitutional protection for personal data gathered for the census and privacy loss is often not enough to show standing, let alone to sustain a substantive claim. The unresolved constitutional crossover between privacy and antidiscrimination has a long pedigree in American constitutional law that goes all the way back to at least Roe v. Wade and Lawrence v. Texas. In the census cases, both the district court and the Supreme Court focused their reasoning on administrative law grounds, leaving the untangled connection between antidiscrimination and privacy based on the equal protection requirement of the Fifth Amendment Due Process Clause for another day.

Conversely, concerns about the misuse of census data have helped shape modern privacy law in Europe. In a 1984 census case, the German Constitutional Court decided that there is a basic right to “informational self-determination”, holding that certain questions on the census survey exceeded the scope of government authority and planting the seeds for constitutional protections of data privacy across Europe. More recently, with the advent of the EU-wide General Data Protection Regulation (GDPR), several EU Member States have been considering a revision of their laws and practices to publish citizenship data on newly naturalized citizens. As some scholars have stressed, “the discrimination element is equally of importance here:…dozens of thousands of naturalized citizens de facto seem to enjoy fewer rights to privacy than the natural born citizens“.

According to the newly issued Executive Order of President Trump, “data identifying citizens will help the Federal Government generate a more reliable count of the unauthorized alien population in the country.” A subsequent statement describes a recent “massive influx of illegal immigrants at our southern border,” states that “hundreds of thousands of aliens who entered the country illegally have been released into the interior of the United States pending the outcome of their removal proceeding,” and warns that “more than 1 million illegal aliens who have been issued final removal orders from immigration judges… remain at-large in the United States.” In light of the above, even solely administrative law grounds should suffice for a Supreme Court concerned about its own legitimacy to sound the alarm on the newly fabricated justification of the President that mandates strong data consolidation across federal and local agencies “for making broad policy determinations”.

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